Court Denies Cert in Highland Park Gun Ban Case

We’ve been waiting with bated breath as the Supreme Court kept holding over the case of Friedman v. Highland Park. Will they take cert? Are they still arguing? Are they waiting for a dissent to denial to be finished?

We now have our answer. Cert is denied: the Supreme Court will not hear the case. That leaves the ban to stand. However, Justice Thomas penned a powerful dissent, which was joined by Justice Scalia. Scroll down to the very end to read the dissent:

“[O]ur central holding in” District of Columbia v. Heller, 554 U. S. 570 (2008), was “that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald v. Chicago, 561 U. S. 742, 780 (2010) (plurality opinion). And in McDonald, we recognized that the Sec- ond Amendment applies fully against the States as well as the Federal Government. Id., at 750; id., at 805 (THOMAS, J., concurring in part and concurring in judgment).

Despite these holdings, several Courts of Appeals— including the Court of Appeals for the Seventh Circuit in the decision below—have upheld categorical bans on firearms that millions of Americans commonly own for lawful purposes. See 784 F. 3d 406, 410–412 (2015). Because noncompliance with our Second Amendment precedents warrants this Court’s attention as much as any of our precedents, I would grant certiorari in this case.

Noncompliance is an understatement at this point. I appreciate Justice Thomas’ and Justice Scalia’s spirited defense of a meaningful Second Amendment, but this dissent doesn’t have any legal meaning. The lower courts are still free to interpret the Second Amendment into irrelevance, which they have largely done.

The Seventh Circuit alternatively asked whether the banned firearms relate “to the preservation or efficiency of a well regulated militia.” 784 F. 3d, at 410 (internal quo- tation marks omitted). The court concluded that state and local ordinances never run afoul of that objective, since “states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade fire- arms.” Ibid. But that ignores Heller’s fundamental prem- ise: The right to keep and bear arms is an independent, individual right. Its scope is defined not by what the militia needs, but by what private citizens commonly possess.

Our only hope here is that there are changes in the Court, which means the Democrats cannot win in 2016 if we’re to have a robust Second Amendment. I get that not everyone likes the Republican candidates this year, and I’m not demanding people vote for whatever yahoo wins the nomination. It is simple a fact that if a Democrat wins in 2016, there will no longer be any Second Amendment right the courts are willing to protect.

Justice Thomas and Justice Scalia have at least left us a legacy, however. The author of the Heller opinion, and a concurring author of the McDonald opinion view the Second Amendment right broadly, believe that the people have a broad right to semi-automatic weapons, and reject categorical bans on common firearms.

Perhaps then in the future, a brave panel of justices will buck circuit precedent and kick a new Second Amendment case to the Supreme Court. But it’s going to take a willingness to do that, and that kind of bravery is unusual in federal judges (at least conservative judges. Leftist judges will just do whatever they want). It may be a long long time before we see another Second Amendment case before the Court again.

For now, we have to defeat Bloomberg and his ilk the old fashioned way. I’d also note that since the Supreme Court has abrogated its duty to us, will do still have the option of Congress taking action using its Section 5 powers under the 14th Amendment, and I do believe it is incumbent upon Congress to avail themselves of this power with the courts so unwilling to act.

18 Responses to “Court Denies Cert in Highland Park Gun Ban Case”

  1. Brad says:

    Can’t say I’m surprised. Particularly after SCOTUS declined to hear the San Francisco case which seemed directly on point and contradictory to DC v Heller.

    God help those poor residents of blue states. And I’m one of them.

  2. aerodawg says:

    SCOTUS has delved into the realm of absurdity with this one. Highland park violated not only Heller and McDonald also Miller to make the hat trick.

    Would not shock me in the least if this is another example of Roberts screwing us.

  3. Lance Lot Link says:

    I think you mean bated breath. Baiting often involves worms and fishing, and can smell of elderberries. :D

  4. Lance Lot Link says:

    Its clear two justices want an assault weapon ban case. But given that they can’t muster enough votes to grant cert, it questionable if there are enough votes to win in the current SCOTUS makeup.

    If republicans loose in 2016, 2A litigation should probably be avoided to prevent a fully left SCOTUS from ever deciding a firearm case until the tide shifts back to the right.

    • Sebastian says:

      I think there’s not enough votes to win. I think they need two more solid justices before that will be the case. Also, cases will go forward whether our people decide to take them forward or not. They will be taken forward mostly by crackpots.

      • aerodawg says:

        Not enough votes to win is where my “Roberts screwing us” comment came from. I’d bet Alito and Kennedy are on our side but there’s not telling what “deference” Roberts will show to legislatures now after the shenanigans he’s pulled….

  5. Erin Palette says:

    I’m getting tired of the Supreme Court not doing its job.

    Makes me wish there was a way that the people could seek redress. I know that SC Justices can be impeached, but that requires “high crimes and misdemeanors”.

    I wonder how abusive it would be if, say, a 2/3rds popular vote could oust a sitting Supreme. Thoughts?

    • Sebastian says:

      I don’t think it’s a bad idea. I also don’t think it would be a bad idea to be able to put up national ballot measures to repeal a law if a bare majority agree.

      • HSR47 says:

        I like this one best: A people’s veto — If a law can’t even garner the support of a bare majority of the voting populace it implies that it would be widely disregarded anyway, which would have a massively negative effect on the rule of law.

    • TS says:

      What pisses me off more than the SC, is the lower courts openly defying their rulings. Shouldn’t there be a better mechanism in place for addressing this than the SC having to hear individual cases where precedent isn’t followed? Shouldn’t there be repercussions for judges not following clear precedent?

  6. Chas says:

    The words of our written constitution are being invalidated at the highest level by mere ignorance. Our system has failed.

  7. Chas says:

    Our Supreme Court is choosing what laws to ignore, what laws to uphold, what laws to reject, and what laws to invent out of thin air. There is effectively no constitution; they simply do as they please. SCOTUS has become a star chamber.

  8. Billll says:

    So what they are saying at this point is that per Heller and McDonald you are permitted to keep a gun but state and or local governments may decide what kind and how many.

    Massachusetts will no doubt soon limit its citizens to one muzzle loading flintlock per household and no percussion cap locks or bayonet lugs lest the gun be considered an assault weapon.

    • Harold says:

      Asking that this is now fact. Local governmental bodies can ban possession of evil looking guns?

      • Billll says:

        AFAIK this is true. Several states and a lot of localities have limits on the type of guns you are allowed to have and so far no circuit court has had a problem with this. It’s when we get a conflict among the circuits that the SCOTUS gets interested enough to resolve the conflict. Maybe then.

  9. Ian Argent says:

    I’m a little surprised by this, actually. It takes 4 votes to grant cert, and we know at least 2 would have done so. so 5 or 6 justices effectively voted to allow the lower courts to ignore precedent without comment. That’s rather shocking.


  1. SayUncle » SCOTUS denies cert in Friedman v. Highland Park - […] Sebastian has some analysis. Basically, we need one more judge on right side of history. My guess is that…